Dr Justice Srem-Sai, the Deputy Attorney General and Minister of Justice, has challenged the position of the Ghana Bar Association (GBA) President, Efua Ghartey, over court proceedings during the legal vacation.
The Deputy Attorney General argued that lawyers do not have the authority to decide whether courts should hear substantive cases during the legal vacation, arguing that such decisions rest with the bench.
Justice Srem-Sai stated that a lawyer or a body of lawyers cannot determine how court proceedings are conducted, and that the power to decide whether to hear a case during a legal vacation lies with the bench, not the bar.
He argued that legal vacation is designed to significantly reduce the workload of the superior courts but does not mean that the judiciary ceases.
According to the Deputy AG, the period is traditionally a reduction in judicial activity rather than a complete shutdown of the courts.
Read Dr Justice Srem-Sai’s opinion piece below:
The President of the honourable Ghana Bar Association (GBA) – in a letter to the Chief Justice dated August 10, 2024 – makes two claims. The first claim is that a vacation Judge does not take proceedings on the substance of the case or conduct trials during the legal vacation. More particularly, the President said:
“This notwithstanding, the Judiciary, with the consent of other stakeholders have by convention over the years, agreed to certain courts being designated as Vacation Courts to handle any emergencies arising during the vacation, usually interlocutory matters and never trials.”
The President’s second claim is that the decision, if any, to take proceedings on the substance of the case during the legal vacation lies with the lawyers in the case (and not the bench). More particularly, the President stated as follows:
“However, the overriding consideration in any matter brought before a Vacation Judge has always been the willingness/availability of Counsel to appear before the Court in any matter slated for conduct during the vacation. In other words, Counsel are not under any compulsion whatsoever to appear before a Vacation Court.”
None of the two claims is support by law, rules, practice, or optimal reason. I will explain. However, not before I give a brief background to the conversation:
Nature of Court Proceedings
A court case entails two types of proceedings. They are (1) proceedings on the substantive matter, and (2) proceedings on interlocutory matters. Proceedings on the substantive matter entails proceedings that are capable of finally determining the case. It often includes trials and hearings on the merit of cases. Interlocutory proceedings, on the other hand, involve motions and summons which do not determine the matter finally. Kindly note this down.
The tradition of law practice (as well as the dictate of the civil procedure rules) is that the superior courts scale down significantly on work in the months of August and September. This is known as the “summer vacations” or “the long legal vacation”. In some jurisdictions, it is informally called “Judges’ vacation”. It is never called “lawyers’ vacation” anywhere in the world.
The key point here, however, is that the courts scale down on work significantly – they do not shut down. To continue operating partially, some judges – a few of them – are allowed to work over the vacation period. The person who determines which judge works over the vacation is the administrative head of the courts – in this case, the honourable Chief Justice and, of course, together with the inherent judicial power of a judge to manage and control his court’s work. One thing is, however, clear – a lawyer or a body of them do not determine that. Kindly note this, too, down.
The Chief Justice allows a Judge to work in the vacation by issuing what we call a “warrant” to the Judge. The Chief Justice’s warrant to a Judge to sit during the legal vacation allows the judge – known as a ‘vacation Judge’ – to hear two kinds of cases. The kinds of cases are (1) cases in his own court, and (2) cases in the courts of other judges who are on vacation. Note this, too, down.
In respect of cases in his own court, a vacation Judge is allowed to take both interlocutory proceedings and substantive proceedings. In respect of cases from other courts, however, a vacation Judge is allowed to take interlocutory proceedings only. This is based on the law and the understanding that it is only a substantive Judge (not a holding Judge) who could determines a case finally.
Now, I turn back to the GBA President’s claims of allegation on court proceedings during the legal vacation.
The Power over Court Proceedings
Contrary to the GBA President’s claim, the power to decide whether to take proceedings on the substance of a case during a legal vacation is for the bench, not for the bar. This is why:
A lawyer’s primary duty is, in fact, to his client – not to the client of another lawyer. If allowed to determine how justice is administered in the courts, a lawyers will decisively make decisions which will promote his client’s interest over the interest of another lawyer’s client. In fact, this is the only reason courts and judges exist – to balance the interest of litigants. It is, therefore, fundamentally disturbing to suggest, as the GBA President has suggested that “the overriding consideration in any matter brought before a Vacation Judge has always been the willingness/availability of Counsel to appear before the Court in any matter slated for conduct during the vacation.”
Let us, for a minute, turn to England, where the practice of legal vacation originates. There, it is emphatically the decision of the bench to determine how to run the courts, both in term-time and during vacations. The Civil Procedure Rules Practice Direction 2F regulates the English High Court’s vacation work. There, one will notice that the Practice Direction is filled with phrases like “if the senior judge of that Division determines …”, “if the Court is satisfied …”, “as the Court may direct”, “Subject to the discretion of the Judge”, etc.
This has always been the case in Ghana, too. As we have known it, it is the Chief Justice who determines when and where a Court should work. She may, as we have come to know it, upon a warrant, determine and direct that a Judge sits even on weekends. We are also aware that Courts have customarily conducted trials over legal vacation. Nowhere, either in England or in Ghana, is a lawyer or a body of them given the power to determine how court proceedings should go. Thus, one is not particularly certain where the GBA President gets the alleged tradition of this version of legal vacation practice from.
Trials During the Vacations
Contrary to the GBA President’s claim, vacation Judges take proceedings on the substance of the case and do conduct trials during the legal vacation. Here is why:
As stated above, a vacation Judge takes both interlocutory and substantive proceedings on cases in his own court. The reason for this is that a vacation Judge is entitled to and does, eventually, take his share of the vacation but in term-time. When he does, another Judge – a term Judge – takes his (the legal vacation Judge’s) cases. As in the case of vacation, a term Judge too will – when the vacation Judge goes on leave – take only interlocutory proceedings on cases from the court of the Judge who is now on vacation. Under such circumstances, too, substantive proceedings on cases from the vacation Judge will be on hold until the vacation Judge returns from leave. This is for the same reason and law that only a substantive Judge (not a holding Judge) could determine a case finally.
The net effect of this arrangement is that cases in the vacation Judge’s courts do not suffer disproportionate delays simply because he has served as a vacation Judge. This has been the practice in our court. So, again, one is not particularly clear what the GBA President grounds the allegation that courts “never” conduct trials during legal vacations on.
Conclusion
Law practice is a difficult job. It drains you, both physically, mentally and emotionally. Many lawyers end up securing for themselves serious physical, behavioural and mental illnesses from law practice. Some manage life, sadly, with indulgences and addictions. Legal vacations, thus, may be a good opportunity for lawyers – who are either unwilling or, for any reason, unable to take control of their lives – to get that well-deserved rest. It is for this reason that many Judges, accommodate the pleas of lawyers to scale down work during judges’ vacation. This accommodation is, however, always upon request, on case-by-case basis, and is subject to the consideration of the Judge who, for the time being is, conducting a case.
What the GBA President’s proposition in her letter to the honourable Chief Justice seeks to do is grave. It seeks move the power to manage and control court proceedings and to do justice from the hands of the Judge into the hands of a lawyer. This has a severe and far-reaching policy implication for justice administration in Ghana. On the face of it alone, it distorts the very reason courts exist. If one adds to it the fact that the claim is also not backed by law, rules, practice or optimal reason, then the matter gets even more unhealthy.
Now, a lawyer who wishes to take a rest during legal vacation knows exactly what to do. He attends proceedings and makes a plea to the Judge for accommodation. The Judge will, in turn, consider the plea and, in the interest of justice, either grant the request (either wholly or in part) or refuse it altogether. What a professional lawyer is not entitled to do, and cannot do is to, in vacuo, beforehand, declare that he will not attend proceedings at all”.
